Com. v. Adda, S.

J-S66027-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYVLANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

SAAD ADDA

Appellant No. 399 MDA 2016

Appeal from the Judgment of Sentence February 5, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0006319-2014
CP-67-CR-0006321-2014
CP-67-CR-0006326-2014
CP-67-CR-0007831-2014

BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J. FILED OCTOBER 31, 2016

Appellant, Saad Adda, appeals from the judgment of sentence entered

after he pled guilty to robbing three banks, as well as possessing heroin with

the intent to deliver. Adda argues that the trial court failed to consider his

rehabilitative needs and therefore imposed an excessive sentence. After

careful review, we affirm.

The following facts are undisputed. Adda and a co-defendant engaged

in an approximately one-month wave of bank robberies while addicted to

heroin. After the third robbery, authorities apprehended him and his

accomplice. He subsequently pled guilty to the robberies, as well as to a

charge that he had conspired to possess heroin with the intent to sell it.
J-S66027-16

The trial court ordered a pre-sentence investigation report (“PSI”),

which recommended an aggregate 4½ to 9 year term of imprisonment. At

his sentencing hearing, Adda argued that his sentence should include an

extensive rehabilitation component. The trial court followed the

recommendation in the PSI, and imposed an aggregate 4½ to 9 year prison

sentence. Adda’s post-sentence motions were denied, and this timely appeal

followed.

On appeal, Adda raises one issue: whether the trial court abused its

discretion by ignoring his rehabilitative needs to impose an excessive

sentence. Adda concedes that this claim challenges the discretionary aspects

of Appellant’s sentence. See Appellant’s Brief, at 7. A challenge to the

discretionary aspects of a sentence must be considered a petition for

permission to appeal, as the right to pursue such a claim is not absolute.”

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation

omitted).

An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:

[We] conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).

-2-
J-S66027-16

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

Here, Adda challenged his sentence in a post-sentence motion and

filed a timely appeal. Adda’s brief also contains the requisite Rule 2119(f)

concise statement. We must now determine whether Adda’s challenge to the

discretionary aspects of his sentence raises a substantial question.

“A substantial question will be found where an appellant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the Sentencing Code or is contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v. Zirkle,

107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa.

2015) (citation omitted). “[W]e cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.” Commonwealth v. Christine, 78

A.3d 1, 10 (Pa. Super. 2013), aff’d, 125 A.3d 394 (Pa. 2015) (citation

omitted).

Here, Adda claims in his Rule 2119(f) statement that the “sentences

imposed are inconsistent with the rehabilitative needs of Appellant in that

they are: inconsistent with the gravity of the offenses; inconsistent with the

protection of the public; and are punitive in nature, rather than

rehabilitative, in light of Appellant’s admission of guilt and other relevant

factors.” Appellant’s Brief at 7.

-3-
J-S66027-16

“[A] generic claim that a sentence is excessive does not raise a

substantial question for our review.” Christine, 78 A.3d at 10 (citation

omitted). “Additionally, this Court has repeatedly held that an allegation that

the trial court failed to consider particular circumstances or factors in an

appellant’s case go to the weight accorded to various sentencing factors and

do not raise a substantial question.” Id. at 10-11 (citation omitted).

While Appellant argues that the sentencing court failed to consider his

rehabilitative needs and “other relevant factors,” in substance he merely

argues that the court failed to sufficiently address factors of record. The

sentencing court had prepared and reviewed a PSI. See N.T., Sentencing,

2/5/16 at 4. Where the sentencing court had the benefit of reviewing a PSI,

we must

presume that the sentencing judge was aware of relevant
information regarding the defendant's character and weighed
those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence
report, the sentencing court's discretion should not be disturbed.
This is particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
awareness of the sentencing considerations, and there we will
presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.

-4-
J-S66027-16

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation

omitted). As the trial court in this case did have the benefit of a PSI, we

must presume that it considered all relevant sentencing factors and

fashioned an individualize sentence.

Based on the foregoing, we are constrained to find that Appellant’s

claim that the sentencing court did not adequately consider relevant factors

of record fails to raise a substantial question. See Commonwealth v.

Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) (en banc), appeal

denied, 104 A.3d 1 (Pa. 2014) (“[A]rguments that the sentencing court

failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a

substantial question whereas a statement that the court failed to consider

facts of record, though necessarily encompassing the factors of § 9721, has

been rejected.”). Appellant’s heroin addiction was put squarely before the

trial court for its consideration. See N.T., Sentencing, 2/5/16 at 4-5.

Furthermore, his desire and need for rehabilitation were clearly

communicated to the trial court. See id., at 5-6. Thus, Appellant’s argument

is that the trial court did not adequately consider relevant factors that are of

record, which does not raise a substantial question for our review.

Judgment of sentence affirmed.

-5-
J-S66027-16

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/31/2016

-6-